Notice periods and deadlines for blue-collar workers: Provisions in collective bargaining agreements on shorter periods for seasonal industries continue to apply

Published 11 May 2022

On 1 October 2021, notice periods and deadlines for blue-collar workers will be aligned with those for white-collar workers. Pursuant to section 1159(4) last sentence of the Austrian Civil Code [Allgemeines Bürgerliches Gesetzbuch, ABGB], however, industries which are predominantly seasonal as defined by section 53(6) of the Works Constitution Act [Arbeitsverfassungsgesetz, ArbVG] can have different rules in their collective bargaining agreements. The same also applies to temporary employment as per section 10(5) of the Temporary Employment Act [Arbeitskräfteüberlassungsgesetz, AÜG].

With this in mind, there was a lack of consensus whether this possibility to have different rules also covered collective bargaining agreements that were in effect already prior to the new version of section 1159 ABGB taking effect on 1 October 2021. The Supreme Court [OGH] recently ruled that it did (9 ObA 116/21f). Section 1159(2) last sentence ABGB enables parties to collective bargaining agreements to determine different rules on notice periods and deadlines for industries that are predominantly seasonal (seasonal industries) by way of collective bargaining agreements.  There is nothing in section 1159 ABGB or in the transitional regulations to say whether this option can be exercised before the provision takes effect, or only afterwards. It makes no difference whether parties to collective bargaining agreements made a provision deviating from section 1159 ABGB or merely upheld an existing provision, being aware of the imminent entry into force of the new statutory provision. By the same token, the fact that in other cases explicit statutory provisions regarding the continued validity of existing collective agreement provisions have been made does not allow the conclusion to be drawn that the legislator now intended something different.

The motion being sought in the proceedings for a declaratory judgment to be rendered was, however, denied because, in the opinion of the OGH, it was not generally possible to determine that the establishments in question were predominantly seasonal on the basis of the data submitted for the hotel and catering industry. Nevertheless, this ruling is relevant for all seasonal industries (e.g. cable cars, construction, tourism) in which different rules on notice periods and deadlines for blue-collar workers had been set out in collective bargaining agreements before the new regulation took effect. An essential factor is, however, proving that businesses in the industry are substantially or usually busier at certain times of the year by their very nature.